Summary: Mr X complained about poor communication, delays, and a lack of transparency within the Council’s SEN team regarding his son’s EHC plan and arrangements for a school place. The delay in the EHC Plan process and failings in the Council’s communication with Mr X is fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complained about poor communication, delays, and a lack of transparency within the Council’s SEN team regarding his son’s EHC plan and arrangements for a school place. This caused unnecessary stress and anxiety and meant Mr X was unable to make an informed decision.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

5. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
6. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

7. The Council has a SEND Commissioning Panel to support the statutory assessment process. The Panel considers individual cases within four categories:
• Short term additional resource, that is additional resources to meet short term needs;
• Consideration of statutory assessment application to determine whether an assessment for an EHC Plan is required;
• Decisions on whether to issue an EHC Plan, based on a review of the assessments;
• Annual reviews when a change of resource is being considered.
8. Where a setting or parents request a reconsideration of an initial decision the Panel will expect additional information to be submitted.
9. The Panel’s current terms of reference say it will meet at least monthly. Members will be able to access a pack of information about each request a week in advance of the meeting.

What happened here

10. Mr X’s son Y attended the nursery at School 1, a mainstream school. In early November 2022 School 1 requested an EHC needs assessment for Y. The Council agreed to an assessment on 21 November 2022. To comply with the statutory timeframes, the Council should have then confirmed whether it intended to issue an EHC Plan by 22 February 2023 and if it did, issue a final EHC Plan by 22 March 2023.
11. The Council issued a draft EHC Plan on 15 March 2023 and invited Mr X to confirm which school he would like Y to attend. Although Mr X wanted Y to remain at School 1, he knew the school could not meet his needs and requested a place at School 2, a specialist school. I have not received any evidence the Council consulted School 2 at this stage.
12. However, the Council did ask School 1 whether it could meet Y’s needs in Reception. The school advised it would be unable to provide the high staff to pupil ratio or the resources required to cater to Y’s individualised needs. School 1 confirmed it shared Mr X’s view that specialist provision would better cater for Y’s needs.
13. The Council issued a final EHC Plan on 4 April 2024, naming School 1. Mr X requested a place at specialist school, School 3. The Placement Review and Commissioning Panel considered the request on 11 May 2023. The meeting minutes note Mr X’s preference was for School 3 but felt it was important to give Y the chance to remain in mainstream school. It considered adjustments could be made in mainstream to meet Y’s needs and that a SEND advisor would be involved to support the school in meeting needs and to determine any additional financial support needed.
14. The Panel concluded a special school was not appropriate at this stage on the grounds it would be unsuitable for the age, ability, aptitude or SEN of the child or young person. It requested a SEND advisor contact School 1.
15. The Council advised Mr X on 15 May 2023 that the panel had decided specialist provision was not appropriate. Mr X asked for an explanation for the decision and whether he could appeal it. He noted School 1 had said it could not meet Y’s needs. Mr X also asked whether the Council had consulted with School 2 as part of the Panel’s decision process. The Council provided details of the Panel’s decision and the appeal process.
16. It also advised Mr X the Panel meeting was to determine whether mainstream or specialist provision was appropriate and it would then begin consultations with schools. In response to the consultations School 3 confirmed it could meet Y’s needs and offered a place, while School 2 confirmed it could not meet Y’s needs.
17. Mr X challenged the Panel’s decision and attended a mediation meeting with the Council and School 1 in June 2023.
18. In early July 2023 School 1 chased the Council for an update. It noted Y’s significant needs were discussed at the mediation meeting where it was agreed they would need to be met in a specialist setting. School 1 was concerned that it was three weeks until the end of term and it could not begin any transition work with Y as it did not know where he would be going. In addition School 1 was disappointed it had not received the recommended SEN support from a council officer as yet.
19. As Mr X was concerned about the lack of progress and clarity regarding a school place for Y in September 2023 he asked his MP for assistance. The MP contacted the Council who responded that Y had a place at School 1 for September 2023. It explained the Panel had decided Y’s needs could be met in mainstream with the support set out in the EHC Plan.
20. The Council also advised the MP that as Mr X had requested a special school place, it had consulted School 3 in line with legislation. School 3 responded that it could meet his needs. The Council said that although the panel did not support the need for a special school, it would not have prevented Mr X from enrolling Y with the school. Had Mr X taken up the place at School 3 he would have been responsible for transporting Y to and from school.
21. On seeing the Council’s response to his MP Mr X made a formal complaint. He was unhappy the Council had not informed him of the option to take up the place at School 3 and said that had they known this they would have made a different choice. Mr X noted that School 1 was unable to manage with the current provision was still waiting a SEN Advisor to visit the school to discuss how the provision in Y’s EHC Plan would be delivered. Mr X asked the Council to confirm the Panel was meeting to review its decision.
22. The Panel reconsidered Y’s case and agreed to specialist provision. The Council advised Mr X on 7 July 2023 that Y had a place at School 3 from September 2023. It then issued an amended EHC Plan on 10 July 2023 naming School 3.
23. The Council responded to Mr X’s complaint in early August 2023. It acknowledged Mr X had not received clear written information about how the legislation applied to their circumstances and apologised. The Council also noted Y now had a place at the preferred setting and that transport would be provided.
24. However the Council did not uphold Mr X’s complaint about the delay in a SEN Advisor visiting School 1. It said the SEN Advisor role was to offer quality assurance, advice and guidance as soon as is possible to support the delivery of provision in school settings. There is no specific deadline by which the SEND Advisor needs to have visited the school. The Council also noted the provision in Y’s EHC Plan was not dependent on a SEND Advisor completing a visit. The school must make the provision when each child with an EHCP joins their roll.
25. In relation to Mr X’s complaint that they were not told Y could have a place at School 3 the Council noted it had informed Mr X that Y had a place at School 3 on 7 July 2023.
26. Mr X was not satisfied by the Council’s response and asked for his complaint to be considered further. The Council reviewed the complaint and wrote to Mr X in late August 2023. It noted that although a SEN Advisor visit was not a statutory requirement, it had been offered in this case and not completed. The Council apologised the services of a SEN Advisor were not made available within a reasonable timescale.
27. The Council noted that schools can respond to consultations in different timescales and that it can take some time for a full picture to develop. It said Mr X was given some of the information and placement possibilities, but not all at the same time. Officers had given information that was accurate but not comprehensive. The Council acknowledged this could be confusing and frustrating and apologised for any negative effects the poor communication may have caused.
28. As Mr X remains dissatisfied he has asked the Ombudsman to investigate his complaint. Mr X remains concerned about the delays and poor communication from the SEN service and lack of transparency in the Panel decision process.
29. In response to my enquiries the Council says the delays in the EHC Plan process were due to limited capacity in the SEN service combined with an increased demand for statutory assessments. The Council says the Panel meets on at least a monthly basis and there is a high demand for places on the panel due to the increasing requests for specialist placements. It says learners are all discussed within the term following their request. Y’s request was prioritised as a phase change year and was discussed within six weeks.

Analysis

30. It is clear from the documentation that there was a delay in completing the EHC Plan process. The Council should have issued the final EHC Plan by 22 March 2023 but did not issue it until 4 April 2023. I recognise this is not a substantial delay however, the Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.
31. There was also fault in the Council’s communication with Mr X. There is no evidence the Council told Mr X that School 3 had confirmed in May 2023 it could meet Y’s needs and had offered a place for September 2023. Or that although Panel did not consider a special school was necessary, he could accept the place at School 3, but would be responsible for transporting Y to school. Mr X was unaware of this option until the Council told his MP several week later.
32. I also consider the Council’s communication regarding the Panel’s role and its decisions could have been clearer. The Council told Mr X the Panel had decided that specialist provision was not appropriate. But it did not provide a reason for the decision or explain how it was made, nor did it advise Mr X of his appeal rights. This led to a series of emails between Mr X and the Council to clarify the issue. Mr X did ultimately receive this information but it would clearly have been much better had all the relevant information been provided in the Council’s initial contact regarding the Panel’s decision.
33. The failure to arrange for a SEN Advisor to visit School 1 was also fault. This may not be a statutory requirement but it was requested by the Panel when considering whether Y’s needs could be met in a mainstream setting. I would therefore have expected a visit to take place in a timely manner.
34. Having identified fault, I must consider whether this has caused Mr X a significant injustice. Mr X has experienced frustration, stress and anxiety at the uncertainty surrounding Y’s EHC Plan and school place for September 2023. He has also been put to unnecessary time and trouble in trying to resolve the matter.

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Agreed action

35. The Council has agreed to:
• apologise to Mr X for the failings in its service and the impact of this on Mr X and his family. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Mr X £200 in recognition of the frustration, stress and anxiety the Council’s delays and poor communication have caused and the unnecessary time and trouble he has been put to.
• remind relevant staff of the need for clear and comprehensive communication with parents regarding EHC Plan processes, including the role of the SEND Commissioning Panel, and any decisions.
36. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

37. The delay in the EHC Plan process and the Council’s poor communication is fault. This fault has caused Mr X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman